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SUPREME COURT REPORTS
[2018] 7 S.C.R.
MOHAMMED ZAKIR
v.
SHABANA & ORS.
(Criminal Appeal No. 926 of 2018)
JULY 23, 2018
[KURIAN JOSEPH AND SANJAY KISHAN KAUL, JJ.]
Code of Criminal Procedure, 1973 – s.362 – Recalling of the
order – High Court recalled its own order, rendering it patently
erroneous – Propriety of – Held: Not proper – The whole purpose
of s.362 is only to correct a clerical or arithmetical error – However,
High Court sought to re-hear the matter on merits – That is
impermissible under law.
Disposing of the appeal, the Court
HELD: The High Court should not have exercised the
power under Section 362 Cr.P.C. for a correction on merits.
However patently erroneous the earlier order be, it can only be
corrected in the process known to law and not under Section 362
Cr.P.C. The whole purpose of Section 362 Cr.P.C. is only to
correct a clerical or arithmetical error. What the High Court
sought to do in the impugned order is not to correct a clerical or
arithmetical error; it sought to re-hear the matter on merits,
since, according to the Judge, the earlier order was patently
erroneous. That is impermissible under law. [Para 4] [1129-D-E]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 926 of 2018.
From the Judgment and Order dated 28.04.2017 of the High Court
of Karnataka at Bengaluru in Crl. Petition No. 2351 of 2017.
Gopal Sankaranarayanan(AC), Shrutanjaya Bhardwaj(AC),
Joseph Aristotle S., Mrs. Priya Aristotle, Ms. Payal N. Gaikwad, Advs.
for the appearing parties.
Mohammed Zakir, Appellant-in-person.
[2018] 7 S.C.R. 1128
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1129
The Judgment of the Court was delivered by
KURIAN, J. 1. Leave granted.
2. We have heard the petitioner, who is appearing in person,
Mr. Joseph Aristotle S., learned counsel appearing for Respondent Nos.1
to 4 and Mr. Gopal Sankaranarayanan, learned counsel, who was
appointed as an amicus in this matter.
3. The appellant is aggrieved since the High Court passed an
order under Section 362 Cr.P.C. dated 28.04.2017 recalling its own order
dated 18.04.2017. The order dated 28.04.2017 reads as under:-
“Notwithstanding section 362 of Cr.P.C. the order rendered by
this Court earlier on 18.04.2017 is found to be patently erroneous
and therefore the order is withdrawn. The petition is restored to
file and the registry is directed not to webhost the order passed
earlier and to take note of the fact that the order is withdrawn.”
4. The High Court should not have exercised the power under
Section 362 Cr.P.C. for a correction on merits. However patently
erroneous the earlier order be, it can only be corrected in the process
known to law and not under Section 362 Cr.P.C. The whole purpose of
Section 362 Cr.P.C. is only to correct a clerical or arithmetical error.
What the High Court sought to do in the impugned order is not to correct
a clerical or arithmetical error; it sought to re-hear the matter on merits,
since, according to the learned Judge, the earlier order was patently
erroneous. That is impermissible under law. Accordingly, we set aside
the impugned order dated 28.04.2017.
5. Now that the parties have appeared before us, we have
ascertained that the appellant approached the High Court, aggrieved by
the notice issued by the Sessions Court on 25.01.2017 in Criminal Appeal
No.95/2017. Since the said appeal is pending before Principal City Civil
and Sessions Judge, Bengaluru, we do not propose to deal with the matter
on merits. Accordingly, we set aside the order dated 18.04.2017 passed
by the High Court and dispose of this appeal with a direction to the
Principal City Civil and Sessions Judge, Bengalure to dispose of the
Criminal Appeal No.95/2017 expeditiously.
6. Pending applications, if any, shall stand disposed of.
Ankit Gyan
Appeal disposed of.
MOHAMMED ZAKIR v. SHABANA & ORS.
Lex